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- Volume 20, Issue 4, 2004
South African Journal on Human Rights - Volume 20, Issue 4, 2004
Volume 20, Issue 4, 2004
Pro-poor court, anti-poor outcomes : explaining the performance of the South African Land Claims CourtAuthor Theunis RouxSource: South African Journal on Human Rights 20, pp 511 –543 (2004)More Less
The Land Claims Court of South Africa ('the LCC') was established in 1996 under the Restitution of Land Rights Act 22 of 1994, one of the first statutes of the new democratic government. Anyone reading the Restitution Act would have had no doubt that the LCC had been established to oversee the reversal of eighty years of state-orchestrated land dispossession. And yet, almost ten years after its establishment, the LCC plays no meaningful role in the land restitution process, and administers two other statutes that, at least in part because of the way they have been interpreted by the Court, are regarded as 'facilitating' a new wave of land dispossession. In seeking to explain this anomaly, this article draws on the work of a group of scholars who are studying the role of courts in new democracies. The study design assumes that the capacity of courts to be used as agents of social transformation is influenced by a number of indicators, including institutional indicators, indicators of poor groups' voice, resource indicators, and indicators of access to justice barriers. What makes the study of the LCC interesting from this perspective is that it provides an opportunity to eliminate most of the variables that typically condition the social transformation performance of courts, viz indicators of poor groups' voice, resource indicators and access to justice barriers. If the theoretical model tested in this article is sound, this means that the performance of the LCC must be explicable in terms of one or more of the posited institutional indicators. Testing this hypothesis, the article examines four areas of law in which plausible pro-poor arguments were made before the LCC, only for these arguments to be rejected or ignored in the decisions handed down. The article then attempts to explain these 'anti poor' outcomes by reference to three institutional indicators: the doctrinal force of the common law, the influence of legal culture, and professional concerns amongst the judges about how their decisions are perceived. The article finds that the continuing influence of legal formalism in South African professional legal culture provides an adequate explanation for most of the decisions studied. Where a legal culture is overwhelmingly formalist, the use of general, discretion-conferring language in social transformation statutes is likely to be less successful than the enactment of detailed, prescriptive rules.
Author Patrick LentaSource: South African Journal on Human Rights 20, pp 544 –576 (2004)More Less
This article enquires into the defensible limits of judicial review. The United States Supreme Court has recently been castigated for overreaching. According to this charge, judges have unjustifiably intruded on the domain of other branches of government by exercising 'political' functions. Critics urge that judges should desist from overreaching by exercising self-restraint, that is, by restricting themselves to the interpretation of rights, rather than interfering with government policy. This article examines selected judgments of the Constitutional Court as examples of judicial self-restraint and scrutinises divergent visions of the judicial role, particularly the judiciary's understanding of its own role. It enquires whether the Court's rhetorical support for judicial restraint is translated into a practice of restraint and, if so, what effect this has on the protection of individuals' rights.
Deference as respect and deference as sacrifice : a reading of Bato Star Fishing v Minister of Environmental AffairsAuthor J.R. De VilleSource: South African Journal on Human Rights 20, pp 577 –615 (2004)More Less
The Constitutional Court was recently asked to review an administrative decision to allocate fishing rights. The case raises the question of the proper role of the Court in review proceedings vis-a` -vis the administration in respect of the transformation of the fishing industry. The Court held that the allocation decision in question was lawful, reasonable and procedurally fair. The judgment is critically analysed in this article in respect of the findings of lawfulness and reasonableness. It is argued that the Court has still not succeeded in departing from the formalistic approach which has characterisedad ministrative law jurisprudence for most of the 20th century. It is contended that for the Court to show a concern with administrative justice, it not only has to abandon its formalistic approach, but it has to adopt a vocabulary of sacrifice. Such a vocabulary will register the ordeal of having to judge in accordance with the law whilst at the same time being calledupon to bring about administrative justice.
New families, new property, new laws : the practical effects of the Recognition of Customary Marriages ActAuthor Mothokoa MamashelaSource: South African Journal on Human Rights 20, pp 616 –641 (2004)More Less
This article discusses the implementation of the Recognition of Customary Marriages Act 120 of 1998 with regard to the personal and property rights of married women. I argue that in traditional customary law women did not 'own' capital assets, namely, the land and cattle; they were the preserve of men. I point out that the new version of the 'official customary law' further reduced their inadequate legal capacity by relegating them to the status of minors. Although the Act seeks to redress this situation, the results of the study on which this article is based indicate that women in customary marriages still perceive themselves as minors and incapable of owning property. Furthermore, I show that the portable nature of the husband's wage, 'the new property' and the financial competition posed by 'a new family' make the implementation of 'the new law' problematic for rural women. Given the real lives of these women, the equality of status between husbands and wives and the community of property envisioned by the Act is likely to remain an illusion rather than becoming a reality.
Ferreira v The State : a victory for women who kill their abusers in non-confrontational situations : notes and commentsAuthor Hallie LudsinSource: South African Journal on Human Rights 20, pp 642 –652 (2004)More Less
Manipulating media content : public sector advertising in the press in Botswana - a comment on Media Publishing v Attorney General of Botswana : notes and commentsAuthor Badala Tachilisa BaluleSource: South African Journal on Human Rights 20, pp 653 –663 (2004)More Less
Realising the right to food in South Africa : not by policy alone - a need for framework legislation : current developmentsAuthor Sibonile KhozaSource: South African Journal on Human Rights 20, pp 664 –683 (2004)More Less
Author Dennis DavisSource: South African Journal on Human Rights 20, pp 684 –694 (2004)More Less